Criminal Defense of Immigrants


§ 21.10 (A)

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(A)  Drug Abuse.  The Public Health Service regulation defines drug abuse as “the non-medical use of a substance listed in section 202 of the Controlled Substances Act ... which has not necessarily resulted in physical or psychological dependence.”[79]  Section 202 of the Controlled Substances Act is codified at 21 U.S.C. § 802, which lists hundreds of controlled substances in five schedules.  Marijuana is included.


The PHS regulations, adopted by DHS,[80] state that examining physicians should evaluate applicants for admission according to the 1991 PHS instructions, entitled “Technical Instructions for Medical Examinations of Aliens” and “Technical Instructions for Medical Examinations of Aliens outside the United States.”  The section on drug abuse was amended in 1992.[81]   


The original version of the Technical Instructions defined an abuser as any person who had made non-medical use of unlawful drugs and was not in “remission.”  Remission was defined as “no non-medical use of a [listed drug] for five or more years ....”[82] 


Under the 1992 changes, remission is defined as no nonmedical use for only the preceding three, not five, years.  The new definition of “nonmedical use” is “more than experimentation with the substance (e.g., a single use of marihuana or other non-prescribed psychoactive substances, such as amphetamines or barbiturates).”[83] Thus, a person who has not used drugs at all, or who has not engaged in “more than experimentation” with drugs for the last three years, is not inadmissible as an abuser.  The instruction goes on to state that “[w]hen a clinical question is raised as to whether the use was experimental or part of a pattern of abuse, a physician with experience in the medical evaluation of substance abusers should be consulted to assist in making this determination.”

[79] 42 C.F.R.§ 34.2(g) (as amended by May 31, 1991 interim rules, 56 Fed. Reg. 25000), reported on and reproduced in Interpreter Releases, June 3, 1991 and June 17, 1991.

[80] Public Health Service regulations are found at 42 CFR Part 34.  The PHS regulations are adopted by INS pursuant to 8 C.F.R. § 232.1.

[81] The Technical Instructions for Medical Examinations of Aliens (June 1991, update July 1992) are available from the U.S. Dept. of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Prevention Services, Division of Quarantine, Atlanta, Georgia 30333.  See discussion in “Exclusion Grounds Under the Immigration Act of 1990” in Immigration Briefings, supra.  The 1992 update was provided in a letter to panel physicians from Charles R. McCance, Director, Division of Quarantine, National Center for Prevention Services, dated July 13, 1992.

[82] PHS, Technical Instructions for Medical Examinations of Aliens and Technical Instructions for Medical Examinations of Aliens in the United States (June 1991), at III-74.

[83] Amendments to p. III-14, 15 of Technical Instructions for Medical Examination of Aliens.




Effective June, 1, 2010, the department of state updated 9 FAM 40.11 to reflect new Technical Instructions for Physical or Mental Disorders and Associated Harmful Behavior and Substance Related Disorders. All prior guidance is superseded.
Effective June 1, 2010, the Foreign Affairs Manual has been substantially re-written as it relates to INA 212(a)(1)(A)(iii), and (iv), the grounds related to physical and mental disorders. 9 FAM 40.11 N11. These revisions include new definitions of phsical disorder (a clinically diagnosed medical condition where the focus of attention is physical manifestations); mental disorder (a health condition characterized by alterations in thinking, mood or behavior), and harmful behavior. Harmful behavior is defined as an action associated with a physical or mental disorder that has caused, or may cause, one or more of the following: 1. Serious injury (psychological or physical) to the noncitizen or others; 2. A serious threat to the health or safety of the noncitizen or others; or 3. Major property damage. Harmful behavior not connected to the disorder is irrelevant. A person who abuses or is dependent upon a controlled substance (or alcohol) may be inadmissible. However, this is not the case where the noncitizen can show remission - defined as "a period of at least 12 months during which no substance use or associated harmful behavior have occurred." Previously, the necessary period of remission was three years. Alcohol abuse or dependence will cause a person to be inadmissible only if there is evidence of associated harmful behavior which has posed, or is likely to pose, a threat to the property, safety, or welfare of the foreign national or others. Persons with a single DUI conviction within the last five years, or for whom there is other evidence to suggest an alochol problem, may be referred by to a panel physician to determine the extent of the disorder, whether there is (or may be) harmful behavior associated with the disorder, and whether the noncitizen is in remission. A disorder can be classified by the panel physician as either Class A or Class B. A class A condition will render a visa applicant ineligible, while a class B condition should not. An immigrant visa applicant who is determined to have a physical or mental disorder with associated harmful behavior may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(iii). However, an immigrant visa applicant diagnosed with substance abuse or addiction is not eligible for a waiver. INA 212(a)(1)(A)(iv). Non-immigrant visa applicants may be able to waive any of these grounds under INA 212(d)(3)(A).
USCIS released a new medical examination form, dated 04/02/08, which includes specific questions on controlled substance use and addiction (Part 2, Q. 4), and has detailed instructions to physicians about completing these questions (page 6). Counsel must therefore prepare clients for medical exams and interviews by asking, "Have you ever smoked marijuana?" and "Are you in remission? Because if you are not in remission, you are inadmissible and have no waiver (unless you are a refugee or asylee doing AOS)." The HHS guidelines provide that an addict is someone who uses or has used a controlled substance for more than a single, experimental use. I-693 instructions:

Thanks to Deborah S. Smith.
DOS cable dated July 7, 2007: "This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence."